What the Moussaoui Circus Portends for the KSM Trial

The court also informed Moussaoui that Randall Hamud, a Muslim attorney hired by Moussaoui’s mother, was in the courtroom, but Moussaoui refused to meet with him.

Things continued to proceed oddly. On July 18, Moussaoui offered a plea of guilty. The court explained the consequences of doing so and gave him a week to think it over. Appointed counsel asked for another competency examination.

Moussaoui again expressed his belief that the jury might find him more credible and decline to impose the death penalty if he pled guilty. However, Moussaoui was ultimately unwilling to admit to the facts necessary to support a guilty plea to the charged conspiracies and withdrew his request.

There were several interlocutory appeals of various rulings:

During the pendency of [an early] appeal, the district court revoked Moussaoui’s right to proceed pro se. Since October 2003, the district court had received over twenty filings from Moussaoui, “most of which [were] not proper requests for appropriate judicial relief.” These filings “[included] veiled, and in some cases overt, threats to public officials, attacks on foreign governments, attempts to communicate with persons overseas, and efforts to obtain materials unrelated to this case.” … After the district court specifically warned Moussaoui that he might lose his right to continue pro se if he continued this course, Moussaoui filed two additional improper pleadings, and the district court revoked Moussaoui’s pro se status. … Moussaoui would later testify that his writings were intentionally designed to promote his agenda of disseminating propaganda about al-Qaeda’s war against the United States.

Eventually, on March 29, 2005, after the Supreme Court had denied certiorari in one of the interlocutory appeals, Moussaoui advised the district court that he wanted to enter an unconditional plea of guilty to all charges. The court explained the consequences of doing so and, following exploration of his understanding of the nature of the plea and its consequences, accepted the guilty plea on April 22. A fascinating and detailed statement of facts was prepared and placed in the record. (It is summarized on pages 15-18 of the Fourth Circuit opinion.)

The court then proceeded to a bifurcated sentencing proceeding, the first phase of which required a determination of whether the death penalty might be appropriate, and the second phase of which required a determination of whether, if appropriate, it should be imposed. (Facts elicited during phase I are recited at pages 19-21 of the Fourth Circuit opinion.) Among the revelations is that statements from KSM himself were received during the phase I proceeding:

According to KSM, Bin Laden first pursued the idea of the planes operation in 1998. KSM stated that the planes operation included plans for a first and second wave of attacks and that “the original plan called for Moussaoui to lead the [second] attack operation in the [United States].” … The first wave of attacks was to be carried out by Arab al-Qaeda associates on the East Coast. The second wave of attacks was to be carried out by non-Arab associates (such as Moussaoui) on the West Coast because KSM believed the non-Arabs would still be able to operate in the heightened security expected after the first wave.

At the conclusion of the phase I proceeding, the jury found Moussaoui eligible for the death penalty; then the phase II proceeding began. Moussaoui elected to testify and claimed that he should not be executed because (a) life in prison would be worse punishment and (b) he might be useful as a bargaining chip in an exchange for someone captured by al-Qaeda. He also addressed:

… the passionate and offensive documents that he had filed during the course of his prosecution, including pleadings asserting that the district court judge was trying to kill him, referring to them as “psychological warfare [propaganda].” … Moussaoui explained to the jury that “when I saw something that I [believed] I could exploit or I could [use to] psychologically damage you, whatever, by propaganda, I will do it.” … Moussaoui also admitted that he told his psychologist that his pro se pleadings were being published and that “Muslim people around the world have … been made happy or have been motivated by them.”

The jury eventually imposed life in prison without possibility of parole.

Then Moussaoui sought to retract his guilty plea:

… claiming that his “understanding of the American legal system was completely flawed” and asking for a new trial “[because] I now see that it is possible that I can receive a fair trial … even with Americans as jurors and that I can have the opportunity to prove that I did not have any knowledge of and was not a member of the plot to hijack planes and crash them into buildings on September 11, 2001.” … In other words, Moussaoui sought to withdraw his guilty plea (and contradict the sworn testimony he had just given) because he had been successful in the penalty phase proceedings.

25 Comments, 25 Threads

1.
Matthew

Sorry, but this is a very weak argument against trying KSM in a criminal court. The guy will be found guilty and the evidence against him will be made public. He will then go to prison, or (potentially) some other more terminal destination. His crimes will be described in the most base, unromantic way possible by lawyers who earn their living that way. He’ll be reduced to a criminal and locked away forever. Nobody will envy the guy.

I don’t understand what how you think moussaui is “milking” the system to support “jihad” – unless maybe you think that demonstrating an open, fair trial process is somehow supporting the islamist cause (which, frighteningly, I think you actually do). So he appealed – and lost. If he appeals again, he’ll lose again. Every time he does that, he just re-confirms his own guilt (and makes a further idiot of himself). Meanwhile he stays in prison.

These are some of the most important criminal cases of the last decade. These guys committed mass murder. What possible objection could you have to following the book and trying them properly? They are going down – no jury will allow otherwise. Bush is gone now – things don’t have to be half-baked anymore.

I’m astonished that any american can be so resistant to the idea of showing that the US is willing to eat its own cooking. That it’s willing to actually DO what it criticizes others for not doing.

>>> From “A Chilling Inheritance of Terror” by Syed Saleem Shahzad, Asia Times, 30 Oct 2002:Ever since the frenzied shootout last month on September 11 in Karachi there have been doubts over whether Khalid Shaikh Mohammed, the self-proclaimed head of al-Qaeda’s military committee, died in the police raid on his apartment.
Now it has emerged that Kuwaiti national Khalid Shaikh Mohammed did indeed perish in the raid, but his wife and child were taken from the apartment and handed over to the Federal Bureau of Investigation (FBI), in whose hands they remain.

>>> From “Pakistanis Arrest Qaeda Figure Seen as Planner of 9/11″ by Erik Eckholm, New York Times, 2 March 2003:Khalid Shaikh Mohammed, suspected of planning the Sept. 11 attacks on New York and Washington and one of the F.B.I.’s most wanted terrorists, was detained by Pakistani authorities this morning and is now in American custody, officials said.

But wait, it gets even weirder! In “Official: Key Al Qaeda Suspect Still in Pakistan,” published on 2 March 2003, Reuters news agency reports:Pakistan’s interior minister denied reports on Sunday that suspected September 11 mastermind Khalid Sheikh Mohammed had been handed over to the United States and said he was still in Pakistan.

2) New York Times reports KSM detained by the Pakistanis and in American custody. On the same day, their interior minister denies reports that he’d been handed over to the US and was still in Pakistan.

“I don’t understand what how you think moussaui is “milking” the system to support “jihad” – unless maybe you think that demonstrating an open, fair trial process is somehow supporting the islamist cause (which, frighteningly, I think you actually do).”

Did you read the article? Because MOUSSAOUI obviously believed that the process was supporting the islamist cause. During Phase II of the process, after he had been found eligible for the death penalty,“Moussaoui also admitted that he told his psychologist that his pro se pleadings were being published and that “Muslim people around the world have … been made happy or have been motivated by them.”

In the mind of the terrorist, and in his own words, he believed that the process would aid (and motivate) the Islamist cause. What is frightening is that you are blind to this.

“These are some of the most important criminal cases of the last decade. These guys committed mass murder. What possible objection could you have to following the book and trying them properly?”

Because he is not an American citizen, but a foreign enemy, and has no claim whatsoever on the protections of the Constitution. His status is that of a franc-tireur, no different than that of the German saboteurs who were landed by U-boat on Long Island in 1942; they were tried in secret by a military tribunal and sentenced to death. THAT is the book.

AQ thrives above all on publicity; it is its oxygen, which we must deny them. KSM and the rest of the rabid dogs at Gitmo should be quietly euthanized after a drumhead court-martial, as authorized by Geneva and ratified at Nuremberg.

I’m just curious. Does anyone think these trials might be used as a basis to introduce Sharia Law into our legal system?

Secondly, it doesn’t matter if Gitmo is closed or not. As long as we have any Jihadist in any of our prisons it will give AQ a self-substantiated reason to “retaliate”. Gitmo didn’t start that and closing Gitmo won’t end it.

KSM trial to be used as a basis to introduce Sharia Law into our legal system? Nope. I’m not aware of any available legal mechanism to do so. If such an avenue existed, I would have thought it would have come up during the Moussaoui trial.

If there had been some kind of behind-the-scenes machinations to somehow work Shari Law into all this, it would have been easier for the Obama administration to push for some form of International Tribunal (in lieu of U.S. Military Tribunals) and try KSM on the world stage (similar to the international tribunal set up to try Slobadan Milosevic). Which, IMO, would have been an even bigger circus than what we’ll see in Federal Court in NY.

Agree with you regarding Gitmo – the question regarding it’s closing is purely political IMO.

3@Curtis M:
Obviously, the reporter in the Asia Times was wrong. It happens.

OK you are claiming that Asia Times got all the painstaking details wrong. Your reasoning: “It happens!” You want to know my point? If so, it only proves your arguments are baseless since you have no facts. If true, then you’re simply flat-out unreasonable and willfully-ignorant:

KARACHI – Ever since the frenzied shootout last month on September 11 in Karachi there have been doubts over whether Khalid Shaikh Mohammed, the self-proclaimed head of al-Qaeda’s military committee, died in the police raid on his apartment.

Certainly, another senior al-Qaeda figure, Ramzi Binalshibh, widely attributed as being the coordinator of the September 11 attacks on the United States a year earlier, was taken alive and handed over to the US. The latest information is that he is on a US warship somewhere in the Gulf.

Now it has emerged that Kuwaiti national Khalid Shaikh Mohammed did indeed perish in the raid, but his wife and child were taken from the apartment and handed over to the Federal Bureau of Investigation (FBI), in whose hands they remain.

Sources close to Pakistani intelligence agents say that the wife, under intense interrogation, has revealed information that is likely to lead to a new crackdown in Pakistan, as well as in Southeast Asia.

After the Taliban and al-Qaeda were routed in Afghanistan at the end of 2001, many fled to Pakistan to regroup and set up new cells. One of these, as described in Asia Times Online, From the al-Qaeda puzzle, a picture emerges, was in Karachi, with Khalid Shaikh Mohammed as its head.

Despite being tracked by informers within Pakistan’s Inter-Services Intelligence (ISI), Khalid Shaikh Mohammed, who has been described as “probably the only man who knows all the [al-Qaeda] pieces of the puzzle”, always managed to remain one step ahead of any raiding parties in the slum areas along the coastal belt of Karachi.

However, it was then learned that Shaikh Mohammed had established connections with some local groups, including underworld figures, to entrench his cell. Using highly sensitive equipment, in April a call was tracked to someone by the name of Arif, living in the densely populated southwestern part of the city. Arif spoke to a Tunisian, passing on a message from Shaikh Mohammed. Subsequently, the Tunisian is believed to be the man who rammed a truck laden with explosives into a Jewish synagogue in Djerba in Tunisia in which many French and German citizens died.

After this suicide attack, the FBI were onto Shaikh Mohammed in a big way, and, no doubt not entirely without coincidence, on September 11 they decided on a showdown at the apartment of Shaikh Mohammed, his wife and child, in the Defense Housing Authority near Korangi Road. A number of Arabs were also living in the apartment at the time.

Initially, the joint ISI-FBI plan was to take Shaikh Mohammed alive so that he could be grilled, especially as he was believed to have knowledge of other al-Qaeda cells in Afghanistan, Somalia, Sudan, Yemen and elsewhere. However, as a plainclothed officer climbed the stairs toward the third-floor apartment, a hand grenade was thrown, and he retreated. Reinforcements then arrived, and for the next few hours a fierce gun battle blazed.

The FBI, still keen to take Shaikh Mohammed alive, teargassed the area, and a number of people were captured. However, despite instructions to the contrary, a few Pakistan Rangers entered the flat, where they found Shaikh Mohammed and another man, allegedly with their hands up. The Rangers nevertheless opened fire on the pair.

Later, the Pakistani press carried pictures of a message scrawled in blood on the wall of the flat, proclaiming the Muslim refrain of Kalma, in Arabic: “There is no God except Allah, Mohammed is his messenger”). An official who was present in the flat at the time of the shooting has told Asia Times Online that the message was written by Shaikh Mohammed with his own blood as his life drained from him.

Subsequently, to their surprise, the raiders learned that Ramzi Binalshibh had been netted in the swoop. And nothing further was said of Khalid Shaikh Mohammed.

But now it emerges that an Arab woman and a child were taken to an ISI safe house, where they identified the Shaikh Mohammed’s body as their husband and father. The body was kept in a private NGO mortuary for 20 days before being buried, under the surveillance of the FBI, in a graveyard in the central district of Karachi.

The widow subsequently underwent exhaustive interrogation in the custody of FBI officials, during which she revealed details of people who visited her husband, and of his other contacts and plans. News of the death of Khalid Shaikh Mohammed was intentionally suppressed so that officials could play on the power of his name to follow up leads and contacts.

From this it emerges that, in particular, Khalid Shaikh Mohammed was in close contact with the Rabitatul Mujahideen, an alliance formed by Indonesia’s Jemaah Islamiyah to act as a central committee for leaders of the various militant groups in Southeast Asia. He was also in touch with dissident groups within the Lashkar-i-Taiba, a Pakistani-based militant group that has been active in Jammu and Kashmir (J&K) in Indian-administered Kashmir, and another Pakistani militia, the Ansarul Islam.

Intelligence officials now believe that through these links a new wave of terror will be unleashed – and officials have already taken the precaution to warn the intelligence agencies of friendly countries to check the lists of all people who have undergone flight training in the past six months: They have been led to believe that another World Trade Center/Pentagon attack is being planned, although not on a target in the US.

Yes Kochevnik, I do want to know your point. Are you trying to say that KSM was killed in a shootout in Karachi Pakistan in September of 2002 and (I assume) the U.S. has been knowingly holding an impostor since that time?

WASHINGTON, DC—According to an FBI report released Monday, “reliable and substantive evidence” exists indicating that Muslims residing in the U.S. are involved in a widespread plot to develop nuclear families.

“We possess what we believe to be credible proof that thousands of Islamic Americans, many of them Mideast-born, are attempting to acquire nuclear-family capability, often in full view of American law-enforcement authorities,” said FBI director Robert Mueller, speaking before the Senate Intelligence Committee. “These nuclear families, which consist of a husband-wife core and a varied number of surrounding offspring, could potentially come into contact with other such nuclear families, creating a terrifying chain reaction of Muslim familial perpetuation.”

Are you insinuating that YOU know better than a terrorist what might motivate other terrorists?

And you know this….how?

Has it occurred to you that Islamic extremists MIGHT NOT hold a very high regard for our legal system? Has it occurred to you that, when we insist on USING our legal system as a response to their actions, that they then might interpret that as a sign of weakness?

Khalid Sheikh Mohammed’s trial will not become reality. The Democrats would be engaging in political suicide. Purple and red state Democrat politicians are already further distancing themselves from the Obama administration. New York’s blue state legislators will also do their best to put a stop to this nonsense. Somebody will come up with a plausible sounding excuse to help the president save face.

This from the “For what it’s worth department. In view of the treatment of the young Nigerian gentleman with the hot underpants, the troops in Afghanistan and Pakistan seem a tad confused over what they are expected to do with captured “terrorists,” AKA enemy combatants.

“From the top to the bottom, the military, the American military people that we talked to, indicated some confusion, operationally, about what you do when you detain a terrorist,” McConnell said at a press conference on Tuesday.

***

After pointing out that a U.S. military general declined to answer questions about the handling of insurgent detainees without the presence of his lawyer, the minority leader said: “This operational confusion has . . . been created, it strikes me, unnecessarily and, frankly, dangerously, by the administration.”

***

“We see this preoccupation with prisoners’ rights both on foreign battlefield[s] and here at home that seems to be consuming the administration in this war on terror,” he explained. “I think it’s wrong-headed.”

Some confusion seems appropriate in view of the handling of young Mr. Umar Farouk Abdulmutallab.

“Are you insinuating that YOU know better than a terrorist what might motivate other terrorists?”

No – I’m saying that he’s full of it. How the heck does a guy sitting in a cell in the US know what’s making anyone dance and cheer back home? Because somebody told him? Who?

“Has it occurred to you that Islamic extremists MIGHT NOT hold a very high regard for our legal system?”

I actually don’t care WHAT islamic extremists think. What matters is what the non-extremist muslim world thinks. We can only fight the nutters with force and deterrence – but it pays to avoid making more of them.

“Has it occurred to you that, when we insist on USING our legal system as a response to their actions, that they then might interpret that as a sign of weakness?”

Not if we find people guilty on the evidence, no. Seriously – do you BELIEVE your nonsense?

“What matters is what the non-extremist muslim world thinks. We can only fight the nutters with force and deterrence – but it pays to avoid making more of them.”

I am in complete 100% agreement on that statement. The question then hinges upon what the non-extremist muslim world thinks, doesn’t it?

Does a non-extremist muslim view an act of terrorism as a criminal act, or an act of war? Throughout the MUSLIM world, they understand that those we term ‘terrorists’ are simply waging war in the way that they’ve ALWAYS waged war – attacks on their adversaries populations. The ‘non-extremist’ muslims may not agree with the tactic, but they understand that extremists are waging war in the only way they can. So, the non-extremists understand terrorists actions to be acts of war rather than simple criminal actions.

You might also consider that the way WE respond to actual criminal actions in this country could also be construed as weak compared to how Muslims would respond to the same actions in their countries. So, how could our criminal-prosecution response to what they consider and act of war be considered as anything BUT weak?

“Some confusion seems appropriate in view of the handling of young Mr. Umar Farouk Abdulmutallab.”

Yes. Confusion on the part of the military stems from the confusion on the part of the administration. I believe this is because the West can’t decide if acts of Islamic terrorism qualify as ‘crimes’ or ‘acts of war’. From the our point of view, they have qualities of both. This tends to muddy the waters and leads to confused methods for dealing with terrorist acts.

Rather than get wrapped up in how WE perceive acts of Islamic terrorism (crimes or acts of war), perhaps it would be beneficial to determine how acts of Islamic terrorism are perceived by Muslims. And THEN react accordingly.

It strikes me that in addition to considering the sensibilities of non-extremist Muslims, we must also consider the capabilities of our civilian criminal justice system and the need to obtain information from people like Abdulmutallab, probably useful to prevent future attacks. Although we should not go out of our way to offend non-extremist Muslims, many of them seem to me to be rather easily offended.

Having seen how the trial of Mr. Moussaoui went, over a very long time, and the many ways in which Mr. Moussaoui apparently used it to attempt to incite further violence by his extremist associates, I think we should have learned an important lesson. Although the military commissions are certainly flawed, I think they are better suited to the purpose.

When there is a question whether attempts to produce “man caused disasters” are merely criminal or acts of war, I think the decision should be made that they are acts of war. That would certainly seem to be consistent with President Obama’s recent proclamation that “we are at war” with al Qaeda, although his meaning in using those words seems unclear.

“…we must also consider the capabilities of our civilian criminal justice system…”

With all due respect, no. Should we consider the capabilities of a civilian criminal justice system if we were discussing perhaps an uptick in domestic crimes and the means to handle such cases? If the capabilities were somewhat lacking, and yet the ‘right’ thing to due was to process these individuals through the system, then that is what would be done. There would just be a backlog.

“…and the need to obtain information from people like Abdulmutallab, probably useful to prevent future attacks.”

This is another reason to consider these to be acts of war rather than mere crimes.

“That would certainly seem to be consistent with President Obama’s recent proclamation that “we are at war” with al Qaeda, although his meaning in using those words seems unclear.”

Actions speak louder than words. I think the only reason these words were used is because of a desire to reverse a skid in Obama’s poll numbers. I don’t think that Obama truly had ANY change of heart in what he feels to be the ‘proper’ response to terrorism.

With the greatest possible respect, I think we do have to consider the capabilities of our civilian criminal justice system. And, upon considering them, I think we should conclude that its use for terrorist cases is inappropriate. The situation is not comparable to a backlog; the problem is systemic. To change the civilian system to make it better suited to terrorist cases would make it unacceptable for civilian criminals.

I agree that actions speak louder than words, and despite lots of the latter there have been few of the former from President Obama suggesting, to me at least, that he considers the United States to be “at war” with al Qaeda in particular or with terrorists in general. I agree with the suggestion that “The prospect of losing a re-election race concentrates the mind wonderfully.”

Further to my previous comment, the civilian criminal system was not designed with the prospect in mind of trying terrorist cases. It is often a bad idea to use something for a purpose other than that for which it was designed.

About a year ago, I used our family car to transport seven one hundred pound sacks of chicken manure. It does not seem to have damaged the suspension system, but for days thereafter the car had a fowl, I mean foul, smell and cleaning it was an unpleasant experience. It was a dumb idea, and I should have hired a pick up truck for the purpose. I learned from that mistake, and wish that the Obama Administration would learn a similar lesson from the Moussaoui trial.

My fault – I was misinterpreting your usage of the term ‘capabilities’. I took it to mean you had a concern regarding the pure manpower requirements to try all terrorism detainees based on the experiences of the Shoe Bomber case. A concern that dumping that many individuals into the system would overwhelm the system.

Your meaning is different. I like the analogy of hauling chicken manure in the family car to trying KSM in our criminal justice system. Seems apt.

The Obama Administration is seriously considering bringing more alleged perpetrators of man caused disasters to the U.S. for trial in civilian courts.

Riduan Isamuddin, better known as Hambali, was allegedly Osama bin Laden’s point man in Indonesia. Until his capture in August 2003, he was believed to be the main link between al-Qaida and Jemaah Islamiyah, the terror group blamed for the 2002 bombing on the island of Bali that killed 202 people.

Attorney General Holder and his crew are looking seriously into trying Mr. Isamuddin in a federal court in Washington, D.C.

Conducting a trial in the nation’s capital would be a symbolic repudiation of the policies of former President George W. Bush, who portrayed Hambali as a success story in the Bush administration’s program of interrogating terror suspects in secret CIA prisons overseas.

Other terrorism trials also may occur in Washington and New York City under a proposal being discussed within the Obama administration, according to U.S. officials briefed on the plan. They spoke to the AP on condition of anonymity because they were not authorized to discuss private planning meetings.

“Riduan Isamuddin, better known as Hambali, was allegedly Osama bin Laden’s point man in Indonesia.”

This has gone beyond absurd.

I’m sorry but, in order to try someone in a court of law, doesn’t one have to have JURISDICTION where the crime alledgedly took place? I mean, even if I could accept that placing terrorists into a civil court room was the ‘correct’ course of action (which I don’t), exactly how does the current administration ‘justify’ bringing this individual into a U.S. Federal Court?

He was (alledgedly) bin Laden’s guy in Indonesia. Implicated in the 2002 Bali attacks. Uh, if we insist on placing him on trial, anywhere, why not Indonesia?

Dan, I think you’ve got it exactly right. It’s nice to see someone who knows what he’s talking about explain the problems inherent in trying foreign terrorists as common criminals.

It’s puzzling to me how the President, the Attorney General, and some commenters here are making the a priori assumption that KSM and others will be convicted. If we know anything at all about our justice system, we know that obviously guilty defendants can be acquitted for any number of reasons. I don’t have a problem with that, to the extent that it results from a zealous predisposition to protect the rights of all citizens even if it results in the occasional incorrect verdict. I do have a problem if the same thing happens with alien enemy combatants who should be facing a military commission at Guantanamo.